Vincent P. Wells, Sr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 16 2016, 9:45 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Vincent P. Wells, Sr., February 16, 2016

Appellant-Defendant, Court of Appeals Case No. 02A03-1508-CR-1066 v. Appeal from the Allen Superior Court. The Honorable Frances C. Gull, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 02D06-1501-F6-15

Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016 Page 1 of 5  1 ^[1] Vincent P. Wells, Sr., appeals his sentence for Level 6 felony theft, contending

that his sentence is inappropriate in light of the nature of the offense and the

character of the offender. We affirm.

^[2] Wells was released to parole on October 17, 2014 after having been convicted of

Class D felony theft in Cause Number 02D05-1310-FD-1087 and sentenced to

serve one and a half years in the Department of Correction. While on parole

under FD-1087, Wells entered a Wal-Mart in Allen County on December 30,

2014 and took a bottle of liquor and other items without paying for them.

Wells was charged with theft. Seven days before the start of his jury trial, he

pleaded guilty to Level 6 felony theft with a prior conviction.

^[3] Wells’ sentencing hearing was held on July 23, 2015. The trial court identified

Wells’ “astonishing” criminal history and failed efforts at rehabilitation as

aggravating circumstances. Tr. p. 19. The trial court noted the mitigating

circumstances of Wells’ guilty plea and his remorse and acceptance of

responsibility. Wells now challenges the trial court’s imposition of a two and

one-half year executed sentence to be served consecutively to his sentence in

FD-1087, contending that the sentence is inappropriate.

^[4] The sentencing range for a Level 6 felony is a period of imprisonment from

between six months and two and one-half years, with the advisory sentence

1 Ind. Code § 35-43-4-2 (West, Westlaw current with all 2015 Public Laws of the 2015 First Regular Session of the 119th General Assembly).

Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016 Page 2 of 5  being one year. Ind. Code Ann. § 35-50-2-7(b) (West, Westlaw current with all

2015 Public Laws of the 2015 First Regular Session of the 119th General

Assembly). Indiana Appellate Rule 7(B) permits an Indiana appellate court to

“revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, the Court finds that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” We assess the trial

court’s recognition or non-recognition of aggravators and mitigators as an

initial guide to determining whether the sentence imposed was inappropriate.

Gibson v. State, 856 N.E.2d 142 (Ind. Ct. App. 2006). The principal role of

appellate review is to attempt to “leaven the outliers.” Cardwell v. State, 895

N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court

that his or her sentence has met the inappropriateness standard of review.

Roush v. State, 875 N.E.2d 801 (Ind. Ct. App. 2007). The question is not

whether another sentence is more appropriate, but whether the sentence

imposed is inappropriate. King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008).

^[5] “When considering the nature of the offense, the advisory sentence is the

starting point to determine the appropriateness of a sentence.” Johnson v. State,

986 N.E.2d 852, 856 (Ind. Ct. App. 2013). “One factor we consider when

determining the appropriateness of a deviation from the advisory sentence is

whether there is anything more or less egregious about the offense committed

by the defendant that makes it different from the ‘typical’ offense accounted for

by the legislature when it set the advisory sentence.” Holloway v. State, 950

N.E.2d 803, 806-07 (Ind. Ct. App. 2011).

Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016 Page 3 of 5 ^[6] When reviewing the sentence with respect to the character of the offender, we

engage in a broad consideration of a defendant’s qualities. Aslinger v. State, 2

N.E.3d 84 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d 571.

^[7] The advisory sentence for a Level 6 felony theft is one year. With respect to the

nature of the offense, Wells committed this offense two months after being

released from the Department of Correction for a sentence imposed on a Class

D felony theft conviction. One of the items Wells took from Wal-Mart was

liquor, which is troubling given his history of substance abuse.

^[8] With respect to the character of the offender, we note that the trial court found

Wells’ criminal history to be “astonishing.” Tr. p. 19. The significance of a

criminal history in assessing a defendant’s character and an appropriate

sentence varies based on the gravity, nature, proximity, and number of prior

offenses in relation to the current offense. Bryant v. State, 841 N.E.2d 1154 (Ind.

2006). As a juvenile, Wells was adjudicated a delinquent four times; once each

for Class B felony arson, Class C felony burglary, vandalism, and shoplifting.

As an adult, Wells has accumulated twenty-seven arrests, sixteen misdemeanor

convictions, and sixteen felony convictions. Wells has committed theft ten

times and has committed conversion four times. He was on parole for the same

offense when he committed this new offense.

^[9] Wells has not carried his burden of persuading us that his sentence is

inappropriate in light of the nature of the offense and the character of the

offender.

Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016 Page 4 of 5 ^[10] Judgment affirmed.

Barnes, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016 Page 5 of 5